L. E. H. v. R. E. M.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2022AP713 Cir. Ct. Nos. 2019TP248
2019TP249
2022AP714 2019TP250
2022AP715
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
APPEAL NO. 2022AP713

IN RE THE TERMINATION OF PARENTAL RIGHTS TO I.A.H., A PERSON UNDER
THE AGE OF 18:

L.E.H.,

PETITIONER-RESPONDENT,

V.

R.E.M.,

RESPONDENT-APPELLANT.
APPEAL NO. 2022AP714

IN RE THE TERMINATION OF PARENTAL RIGHTS TO N.H.H., A PERSON UNDER
THE AGE OF 18:

L.E.H.,

PETITIONER-RESPONDENT,

V.

R.E.M.,

RESPONDENT-APPELLANT.
Nos. 2022AP713
2022AP714
2022AP715

APPEAL NO. 2022AP715

IN RE THE TERMINATION OF PARENTAL RIGHTS TO M.F.H., A PERSON UNDER
THE AGE OF 18:

L.E.H.,

PETITIONER-RESPONDENT,

V.

R.E.M.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.

¶1 DUGAN, J.1 Rebecca appeals from orders of the circuit court
terminating her parental rights to her three children.2 On appeal, Rebecca argues
that the circuit court improperly granted summary judgment on the grounds
alleged in the petition to terminate her parental rights, and she argues that the
circuit court created the appearance of bias by conducting the adoption hearing at
the end of the disposition hearing. For the reasons set forth below, this court
affirms.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
To maintain the confidentiality of these proceedings, this court uses pseudonyms to
refer to the parties.

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BACKGROUND

¶2 Luke and Rebecca have three children together. Their relationship
ended, and pursuant to a family court order entered in 2015, Luke and Rebecca
shared custody and physical placement of the children.

¶3 Subsequently, the children’s school reported that the children came
to school wearing the same clothes for several days in a row, were unfed, and were
excessively absent with no excuse provided on days that Rebecca had placement
of the children. The school filed reports with Child Protective Services, and the
school also documented that Rebecca appeared intoxicated at one of the children’s
school pageants. Further events uncovered that Rebecca had no power at her
home, did not always have food available for the children, would leave the
children unattended for long periods of time, was often unresponsive to the
children when she was home,3 and as the oldest child later told Luke, they would
do their homework by candlelight in the “spider room” and the oldest child would
try to feed her younger siblings by heating soup in the microwave at the beauty
shop located on a lower level of the apartment building.

¶4 Consequently, Luke sought to have the family court order revised,
and in November 2017, the family court entered a revised order that granted Luke
sole custody and primary physical placement. The family court also ordered that
Rebecca’s placement and visitation were “held open,” pending treatment for drug
and alcohol addiction. In the order, the court found that Rebecca “had a
documented history of substance abuse issues and continues to show signs of

3
As the oldest child described for Luke, “Mom won’t wake up” when she is home.

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ongoing substance abuse,” Rebecca “has been inconsistent in attempts to see” the
children, and “she seems intoxicated” when she does appear for visits. The order
also noted that Rebecca failed to appear at the hearing. Luke has retained sole
custody and primary physical placement of the children since November 2017.

¶5 Luke filed a petition to terminate Rebecca’s rights on December 18,
2019.4 In the petition, Luke alleged grounds of abandonment, continuing denial of
periods of physical placement or visitation, and failure to assume parental
responsibility. In his supporting affidavit, Luke averred that Rebecca had not seen
the children since approximately April 2017, and that since that time, Rebecca has
collected a number of criminal charges, including operating while intoxicated as a
fourth offense, possession of cocaine, and operating a vehicle without the owner’s
consent.

¶6 Luke moved for summary judgment on the grounds that Rebecca
abandoned the children by failing to visit or communicate from late 2017 through
2018. He argued that Rebecca made only one attempt at communication with the
children late in 2017, through Luke’s wife, in which Rebecca requested contact
information for the children and that Rebecca had no visitation or communication
with the children during 2018.5 In fact, Luke again contended that Rebecca had
not seen the children since approximately April 2017. He further averred that
neither he, nor his wife, nor the children had been in contact with Rebecca, and he

4
Along with the petition to terminate Rebecca’s parental rights, Luke and his wife also
filed a petition to have his wife adopt the three children.
5
It should be noted that Luke also averred that he and his wife maintained the same
phone numbers and that Rebecca had used these phone numbers in the past to communicate with
them.

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argued that the lack of contact was undisputed because Rebecca also testified
during her deposition that she only made the one attempt in late 2017 to contact
Luke’s wife.

¶7 Luke argued that it was further undisputed that Rebecca abused
alcohol, used heroin and cocaine, and accumulated several criminal charges during
2018, when she was absent from the children’s lives. He further argued that,
based on Rebecca’s deposition testimony, Rebecca’s “good cause” for failing to
maintain any contact was her “substance abuse disorder.” He argued that any
argument to that effect was undermined because Rebecca continued to maintain
contact with—in fact, she was the primary caregiver for—a son she had after the
end of her relationship with Luke.6

¶8 In response, Rebecca argued that “incarceration, addiction, and
indigency” and Luke’s “contentious disposition” prevented her from maintaining
contact with the children and provided a “good cause” defense to the alleged
abandonment in late 2017 and throughout 2018. She also submitted an affidavit in
which she averred that she made multiple attempts to contact Luke and his wife
throughout 2018.

¶9 The circuit court rejected Rebecca’s arguments, and it granted
Luke’s motion for summary judgment on the grounds that Rebecca abandoned her

6
Rebecca had two children after her relationship with Luke ended. One of these
children currently resides in Arizona with his father, and Rebecca was in the midst of fighting to
retain the rights to the other child at the time of these proceedings.

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children.7 In granting Luke’s motion, the circuit court found that Rebecca
submitted a “sham affidavit”8 in support of her motion for summary judgment in
which she indicated—contrary to her deposition testimony—that she made
multiple attempts to contact Luke and his wife throughout 2018.

¶10 The circuit court further rejected Rebecca’s arguments as to good
cause stating:

The other thing I would note is while the court order
in the family law case requires her to be in treatment before
she can move for placement, it doesn’t prohibit her from
having contact. There is no no-contact order anywhere in
these facts, and specifically in that order is a warning that
no parent can intentionally conceal the child from the
other…. So even though maybe she was not in a position
to have … placement, she had a right to have contact with
her children.… [I]nstead, she was absent from their lives
for more than a year, which is way longer than three
months and quite a bit longer than six months.

The circuit court also rejected Rebecca’s good cause argument that she was too
“debilitated” by her drug addiction saying: “[S]he was living with another man
with another child and fighting in another court about her rights to that child, and,
you know, item 11 in her affidavit says because of this addiction, I had difficulty
maintaining a consistent presence in my children’s lives.”

7
The circuit court also dismissed the failure to assume parental responsibility ground,
and the final ground for continuing denial of periods of physical placement or visitation was
dismissed pursuant to a motion to dismiss that Rebecca filed.
8
See Yahnke v. Carson, 2000 WI 74, ¶21, 236 Wis. 2d 257, 613 N.W.2d 102 (defining a
“sham affidavit” as one “that directly contradicts prior deposition testimony … unless the
contradiction is adequately explained”).

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¶11 The case then proceeded to the disposition hearing at which Luke,
his wife, Rebecca, and the therapists for the children testified. After considering
their testimony, the circuit court terminated Rebecca’s parental rights. The circuit
court noted that Rebecca had recently begun treatment for her addictions and was
making progress. However, the circuit court stated that the events the children
endured when Rebecca had placement were clearly traumatic for them and left
them in an unsafe and unstable living situation, but by comparison their current
situation with Luke and his wife put the children “in a really good place.” Thus,
after reviewing the factors found in WIS. STAT. § 48.426(3), the circuit court
terminated Rebecca’s parental rights.

¶12 Rebecca filed a postdisposition motion alleging that she received
ineffective assistance of counsel in responding to Luke’s motion for summary
judgment and that the circuit court was objectively bias. The circuit court held a
hearing at which trial counsel testified.9 The circuit court denied Rebecca’s
motion, and Rebecca now appeals.

DISCUSSION

¶13 On appeal, Rebecca presents two main arguments. Rebecca first
argues that the circuit court improperly granted Luke’s motion for summary
judgment. She argues (1) that her trial counsel was ineffective for failing to
present evidence of Luke’s “history of domestic violence” and (2) that her trial
counsel was ineffective for failing to present evidence that Luke’s wife refused to
facilitate contact between Rebecca and the children. Second, Rebecca argues that

9
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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the circuit court left time at the end of the disposition hearing to process the
adoption, thereby creating the appearance that the circuit court had predetermined
her case. This court disagrees and addresses each argument in detail below.

I. Claim of Ineffective Assistance of Counsel at Summary
Judgment

¶14 Rebecca first argues that her trial counsel was ineffective for failing
to raise two specific “good cause” defenses in response to Luke’s motion for
summary judgment. To prove ineffective assistance of counsel in a termination of
parental rights proceeding, a parent must show two elements: (1) counsel’s
performance was deficient; and (2) the deficient performance resulted in prejudice
to the defense. A.S. v. State, 168 Wis. 2d 995, 1005, 485 N.W.2d 52 (1992)
(citations omitted) (adopting the analysis from Strickland v. Washington, 466
U.S. 668 (1984), for TPR proceedings). We need not address both prongs of the
analysis if the defendant makes an insufficient showing on one. State v. Johnson,
153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990).

¶15 “An ineffective assistance of counsel claim presents a mixed
question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95. This court “will not reverse the circuit court’s findings of fact unless
they are clearly erroneous.” Id. However, this court “independently review[s], as
a matter of law, whether those facts demonstrate ineffective assistance of
counsel.” Id.

¶16 In this case, to determine whether trial counsel was ineffective, this
court must also consider whether summary judgment would have been appropriate
had trial counsel raised the two good cause defenses that Rebecca now identifies.
“[S]ummary judgment may be employed in the grounds phase of a termination of

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parental rights proceeding when there is no genuine factual dispute that would
preclude finding one or more of the statutory grounds by clear and convincing
evidence.” Oneida Cnty. DSS v. Nicole W., 2007 WI 30, ¶14, 299 Wis. 2d 637,
728 N.W.2d 652. The same standards found in WIS. STAT. § 802.08 apply.
Nicole W., 299 Wis. 2d 637, ¶14.

¶17 Pursuant to WIS. STAT. § 802.08(2), summary judgment shall be
granted “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter
of law.” “A factual issue is ‘genuine’ if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Strasser v. Transtech Mobile
Fleet Serv., Inc., 2000 WI 87, ¶32, 236 Wis. 2d 435, 613 N.W.2d 142. “It is not
enough to rely upon unsubstantiated conclusory remarks, speculation, or testimony
that is not based upon personal knowledge.” North Highland Inc. v. Jefferson
Mach. & Tool Inc., 2017 WI 75, ¶22, 377 Wis. 2d 496, 898 N.W.2d 741 (citation
omitted). “Whether the circuit court properly granted summary judgment is a
question of law that this court reviews de novo.” Racine Cnty. v. Oracular
Milwaukee, Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88 (citation
omitted).

¶18 In this case, Luke moved for summary judgment on the grounds that
Rebecca abandoned the children within the meaning of WIS. STAT.
§ 48.415(1)(a)2. and § 48.415(1)(a)3. by failing to visit or communicate from late
2017 through 2018. Pursuant to these grounds, abandonment can be established
by proving either “[t]hat the child has been placed, or continued in a placement,
outside the parent’s home by a court order containing the notice required … and

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the parent has failed to visit or communicate with the child for a period of
3 months or longer” or “[t]he child has been left by the parent with any person, the
parent knows or could discover the whereabouts of the child and the parent has
failed to visit or communicate with the child for a period of 6 months or longer.”
Sec. 48.415(1)(a)2.-3. However, abandonment cannot be established if the parent
proves by a preponderance of the evidence that there was “good cause” for failing
to visit or communicate with the child during the alleged period of abandonment.
Sec. 48.415(1)(c).

¶19 Here, Rebecca argues that her trial counsel failed to present evidence
of good cause in defense of Luke’s motion for summary judgment, and therefore,
her trial counsel was ineffective. She contends that her trial counsel failed to
present (1) evidence of domestic violence during her relationship with Luke and
(2) evidence that Luke’s wife refused to allow contact between Rebecca and her
children.

¶20 Specifically, Rebecca points to a disorderly conduct charge from
August 2017 in which Luke forcefully removed Rebecca from his property and
threatened Rebecca’s boyfriend, and Rebecca points to her deposition testimony
wherein she claims that, among other things, Luke choked her, stabbed her, and
held her head under water. She also provides an instance from December 2017
when she sent Luke’s wife a Facebook message asking for an address for the
children and Luke’s wife either failed to respond or responded saying that Rebecca
had no right to that information.10 Overall, she argues that she established good
10
Luke’s wife claimed that she responded to Rebecca’s Facebook message saying that
Rebecca needed to send her request through the proper channels. The nature of the response,
however, is immaterial.

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cause for her failure to visit or communicate from late 2017 through 2018 based
on the domestic abuse and Luke’s wife’s interference, and therefore, summary
judgment was inappropriate.

¶21 In granting Luke’s motion for summary judgment, the circuit court
rejected Rebecca’s arguments, stating that even had this information been
presented, it would not have changed the outcome and created a triable issue. See
Yahnke v. Carson, 2000 WI 74, ¶10, 236 Wis. 2d 257, 613 N.W.2d 102 (“The
well-established purpose of summary judgment procedure is to determine the
existence of genuine factual disputes in order to ‘avoid trials where there is
nothing to try.’” (citation omitted)). This court agrees with the circuit court’s
assessment.

¶22 As the circuit court aptly stated when it denied Rebecca’s
postdisposition motion,

any domestic violence, whatever its level, whatever its
nature, during the time these parents were together as a
couple, which ended in 2015, is totally irrelevant to
whether she met that condition established by the family
court, and one domestic violence citation from August 8 of
2017 which precedes the period of abandonment also does
not raise a triable issue of material fact. There was at least
a three month and at least a six-month period in 2018
where she didn’t do anything to change the status of her
contact with the kids.

¶23 Nevertheless, Rebecca argues that the domestic violence that existed
in her relationship with Luke gave her a “good faith reasonable belief” that any
efforts to communicate with her children would have failed. However, Rebecca
fails to demonstrate that she even made an attempt to have contact with her
children during the alleged period of abandonment and that any attempts at
visitation or contact failed because of any past domestic violence that occurred

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between her and Luke. Consequently, her argument is based on mere
speculation,11 and her good cause argument premised on past domestic violence in
her relationship with Luke does not present a genuine issue of material fact that
precludes summary judgment.

¶24 Rebecca’s argument regarding interference from Luke’s wife suffers
from a similar flaw. Here, Rebecca points to one attempt in late 2017 in which she
contacted Luke’s wife to obtain contact information for the children. Rebecca
then claims that Luke’s wife refused to provide that information because Rebecca
had no rights. Rebecca then admits in her deposition that she never made another
attempt at contact through the remainder of 2017 and throughout 2018. With only
one attempt at contact, she cannot raise a good cause defense premised on
interference by Luke’s wife that creates a genuine issue of material fact that
precludes summary judgment.

¶25 Along the same lines, Rebecca argues that she believed that contact
with Luke and Luke’s wife would not “get [her] anywhere” and “that most of this
needs to go through the court.” However, Rebecca again fails to provide any
attempts to “go through the court” to remedy the interference she claims to have
received from Luke and his wife. There is, therefore, no genuine issue of material
fact that precludes summary judgment. See Strasser, 236 Wis. 2d 435, ¶32.

¶26 Consequently, this court concludes that Rebecca did not receive
ineffective assistance of counsel. Even if trial counsel had raised the good cause

11
This court notes that trial counsel testified at the Machner hearing that he was aware
of domestic violence in Rebecca’s relationship with Luke “[i]n a broad sense,” but he could not
recall that he “reviewed anything that would have been consistent with that.”

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defenses that Rebecca currently identifies, it would not have changed the outcome
of the motion for summary judgment. See State v. Erickson, 227 Wis. 2d 758,
769, 596 N.W.2d 749 (1999) (defining prejudice occurs as counsel’s error is of
such magnitude that there is a “reasonable probability” that but for the error the
outcome would have been different).

II. Claim of Judicial Bias

¶27 Rebecca additionally raises an argument that the circuit court was
objectively biased and the circuit court’s comment at the end of the disposition
hearing that it left time to process the adoption indicates that the circuit court had
predetermined the outcome of the case.

¶28 Following the circuit court’s decision to terminate Rebecca’s
parental rights, Rebecca and her trial counsel were excused from the courtroom.
The following exchange then took place:

THE COURT: So I can do these adoptions right now. If
you think it’s feasible, we could take 5 to 10 minutes and
get the kids on the Zoom if you want them to join us or I
can get you another date, but I purposely left a half hour
this afternoon because I think we need to get this done.
Why don’t we all just take 5 minutes, catch your breath,
talk to each other. If they want to join by Zoom, I would
love to have them.

[COUNSEL]: They would love that.

THE COURT: Okay. Why don’t we take 5.

Rebecca argues that the circuit court’s comments here demonstrate that it decided
to “pre-allot time” for the adoption proceedings because it had predetermined that
termination of Rebecca’s parental rights was in the children’s best interests. This

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court disagrees and concludes that the circuit court’s comments do not rise to the
level of objective bias.

¶29 “The right to an impartial judge is fundamental to our notion of due
process.” Miller v. Carroll, 2020 WI 56, ¶15, 392 Wis. 2d 49, 944 N.W.2d 542
(citation omitted). “We presume that a judge has acted fairly, impartially, and
without bias.” Id., ¶16. The party asserting judicial bias bears the burden of
overcoming the presumption by showing bias by a preponderance of the evidence.
Id. If the presumption is rebutted, the result is a due process violation, and such
an error is “structural and not subject to a harmless error analysis.” Id. “Whether
a circuit court’s partiality can be questioned is a matter of law that we review
independently.” State v. Goodson, 2009 WI App 107, ¶7, 320 Wis. 2d 166, 771
N.W.2d 385.

¶30 In this case, Rebecca argues that the judge was objectively biased.
See Miller, 392 Wis. 2d 49, ¶21 (defining the two categories of judicial bias as
subjective bias and objective bias). “Objective bias can exist in two situations:
(1) where there is an appearance of bias; and (2) where objective facts demonstrate
that a judge treated a party unfairly.” State v. Marcotte, 2020 WI App 28, ¶17,
392 Wis. 2d 183, 943 N.W.2d 911. “The appearance of partiality constitutes
objective bias when a reasonable person would conclude ‘that the average judge
could not be trusted to hold the balance nice, clear, and true under all the
circumstances.’” Id. (citation omitted). Where the appearance of bias “reveals a
great risk of actual bias, the presumption of impartiality is rebutted, and a due
process violation occurs.” Id. (citation omitted).

¶31 In denying Rebecca’s postconviction motion, the circuit court stated:

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I can tell you the way the dispositional hearing unfolded, I
listened to all of the evidence, I took the closing arguments
of lawyers, I then concluded as a matter of law it was in the
children’s best interest to terminate [Rebecca]’s parental
rights, and then I tailored my dispositional comments to
leave some time at the end to effectuate the adoption. So I
was not biased against [Rebecca] in any fashion. I did not
make up my mind prior to hearing the evidence and
argument.

¶32 This court agrees that there is no indication of objective bias here.
Over the course of two days, the circuit court heard extensive testimony during the
disposition hearing from Luke, his wife, Rebecca, and the children’s therapists.
Then, following the testimony, the circuit court provided a lengthy analysis of that
testimony and applied the factors found in WIS. STAT. § 48.426(3). Any comment
that the circuit court made following the conclusion of the disposition hearing
about moving forward with the petitions to have Luke’s wife adopt the children
does not rise to the level of objective bias.

CONCLUSION

¶33 This court concludes that Rebecca’s trial counsel was not ineffective
for failing to raise two good cause defenses premised on alleged domestic abuse
that existed between her and Luke and any interference from Luke’s wife with
Rebecca’s attempt to contact the children. This court also concludes that the
circuit court’s comment about processing the adoption following the disposition
hearing does not rise to the level of objective bias. Accordingly, this court
affirms.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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